CHAPTER 14 - 14-3 Discovery Sanctions
| Jurisdiction | United States |
14-3 Discovery Sanctions
14-3:1 General Objectives of and Limits on Discovery Sanctions
Discovery sanctions are intended to serve three legitimate purposes: "(1) secure the parties' compliance with the rules of discovery, (2) deter other litigants from violating the discovery rules, and (3) punish parties that violate the rules of discovery."44 The Texas Supreme Court has made it clear, however, that "discovery sanctions are primarily intended to remedy discovery abuse and [thus] should be tailored to serve their remedial purpose."45
Although a trial court has broad discretion in assessing sanctions, the sanctions it imposes must further one of the purposes discovery sanctions are intended to further46 and must be "just."47 "Two factors mark the bounds of the trial court's discretion in order for sanctions to be just:"48 (1) "a direct relationship must exist between the offensive conduct, the offender, and the sanction imposed[,]"49 and (2) "the sanction imposed must not be excessive. In other words, the punishment should fit the crime."50 To meet the first "requirement, a sanction must be directed against the wrongful conduct and toward remedying the prejudice suffered by the innocent party."51 To meet the second requirement, the sanction "should be no more severe than necessary to satisfy its legitimate purposes."52
14-3:2 Heightened Standards Applicable to Death-Penalty Sanctions
In a case in which discovery abuse has occurred, heightened standards apply, and due-process concerns are implicated, when a court imposes sanctions that preclude a presentation on the merits (i.e., "death-penalty" sanctions):53
Discovery sanctions cannot be used to adjudicate the merits of a party's claims or defenses unless a party's hindrance of the discovery process justifies a presumption that its claims or defenses lack merit. . . . Although punishment and deterrence are legitimate purposes for sanctions, they do not justify a trial by sanctions. Sanctions which are so severe as to preclude presentation of the merits of the case should not be assessed absent a party's flagrant bad faith or counsel's callous disregard for the responsibilities of discovery under the rules.54
The Texas Supreme Court has recognized, for example, that "[m]ultiple violations of the discovery rules and court orders relating to discovery may be a factor authorizing imposition of [a death-penalty] sanction, even when the offending party offers justifications and excuses."55
"Case determinative sanctions may be imposed in the first instance only in exceptional cases when they are clearly justified and it is fully apparent that no lesser sanctions would promote compliance with the rules."56 Thus, before imposing a death-penalty sanction, a trial court "must consider the availability of less stringent sanctions and whether such lesser sanctions would fully promote compliance."57 The "record must reflect that the court considered the availability of lesser sanctions."58 This requirement can be met, for example, with a sanctions order containing "an extensive, reasoned explanation of the appropriateness of the sanction imposed, demonstrating that the trial court considered the availability of less stringent sanctions."59 But the trial court is not required "to list each possible lesser sanction in its order and then explain why each would be ineffective."60 Instead, the trial court is simply required to "analyze the available sanctions and offer a reasoned explanation as to the appropriateness of the sanction imposed."61 This analysis may be done on the record at the sanctions hearing or in the written sanctions order.62
In addition to considering lesser sanctions, "in all but the most exceptional cases, [the trial court must] actually test the lesser sanctions" before determining they are insufficient to promote compliance.63 Exceptional cases include, for example, a party deliberately destroying dispositive evidence after being asked and ordered repeatedly to produce it,64 a party fabricating critical evidence and then lying about it during a deposition,65 and a party leaving the country with no intent to appear in the action again.66
In cases involving parental-rights determinations, "the trial court must also consider the child's best interest when ruling on death-penalty sanctions."67 This additional requirement reflects the legislative mandate to make the best interest of the child the court's primary consideration in such cases.68
14-3:3 Persons Who May Be Sanctioned—Parties, Attorneys, and Nonparties
A discovery "sanction should be visited upon the offender[,]"69 which may be a party, its attorney, or both a party and its attorney.70 The Texas Supreme Court has recognized that "apportioning blame between an attorney and a represented party 'will not be an easy matter in many instances.'"71 Nonetheless, a trial court is required to "attempt to determine whether the offensive conduct is attributable to counsel only, to the party only, or to both."72
A party cannot hide behind its attorney to avoid sanctions if the party engaged in, or was complicit in allowing, the discovery abuse. For example, a party may be sanctioned if it has been personally involved in the discovery abuse,73 if it has destroyed evidence,74 if it has refused to produce evidence,75 or if it was or should have been aware of its attorney's discovery abuses.76 Further, "a lawyer cannot shield his client from sanctions; a party must bear some responsibility for its counsel's discovery abuses when it is or should be aware of counsel's conduct and the violation of discovery rules."77 A party should not be sanctioned, however, where there is evidence that it was not personally involved with, or aware of, the discovery abuse.78
"Sanctions may be visited exclusively on the attorney if the evidence demonstrates that the offensive conduct is attributable to counsel alone."79 Moreover, "a party should not be punished for counsel's conduct in which it is not implicated apart from having entrusted to counsel its legal representation."80 Where an attorney alone is sanctioned, the trial court must consider the effect of the sanction on the party when fashioning a sanction.81 Multiple attorneys who engage in discovery abuse may be sanctioned jointly and severally.82
When the party and its attorney acted together and both knew about the discovery abuse, the sanctioning of both is proper.83
Finally, trial courts may impose sanctions on a nonparty when, for example, it is subject to a Texas Rule 196.7 request or motion for entry upon property or a Texas Rule 205.3 production request without a deposition and fails to comply with an order under Texas Rules 196.7 or 205.3.84 But the type of sanctions available is limited. Specifically, a trial court may not impose sanctions on nonparties under Texas Rule 215.2(b).85 Rather, the sanction relating to nonparties is specified in Texas Rule 215.2(c): "If a nonparty fails to comply with an order under [Texas] Rules 196.7 or 205.3, the court which made the order may treat the failure to obey as contempt of court."86
14-3:4 Sanctionable Discovery Conduct
Texas Rule 215 describes types of discovery abuses that call for discovery sanctions. In addition, Texas case law defines and addresses "spoliation" for which discovery sanctions may be imposed. The following sections address each type of conduct for which a trial court may impose discovery sanctions.
14-3:4.1 Conduct That Warrants Motion for Sanctions by Discovering Party
As discussed in section 14-2:4 of this Chapter, Texas Rule 215.1(b) addresses a wide variety of conduct warranting a sanctions motion by "the discovering party."87 For example, Texas Rule 215.1(b)(1) provides that a discovering party may move for sanctions "if a party or other deponent which is a corporation or other entity fails to make a designation under [Texas] Rules 199.2(b)(1) or 200.1(b)[.]"88 And Texas Rule 215.1(b)(2) entitles a discovering party to move for sanctions if "a party, or other deponent, or a person designated to testify on behalf of a party or other deponent," after being served with proper notice, fails "to appear before the officer who is to take his deposition,"89 or fails "to answer a question propounded or submitted upon oral examination or upon written questions."90 A discovering party may also move for sanctions if a party fails to object to or answer interrogatories pursuant to Texas Rule 19791 or fails to respond properly to requests for inspection pursuant to Texas Rule 196.92 For motions made under this section, Texas Rule 215.1(c) provides that "an evasive or incomplete answer is to be treated as a failure to answer."93
14-3:4.2 Failure to Comply with an Order or with a Discovery Request
Texas Rule 215.2 addresses conduct that is sanctionable by the trial court, with or without a motion.94 Texas Rule 215.2(a) provides for sanctions (specifically, contempt of court) for the failure of a deponent "to appear or to be sworn or to answer a question after being directed to do so by a district court in the district in which the deposition is being taken[.]"95 Texas Rule 215.2(b) provides for sanctions for the failure of a (1) party, (2) an officer, director, or managing agent of a party, or (3) a person designated under the deposition rules to testify on behalf of a party, "to comply with proper discovery requests or to obey an order to provide or permit discovery."96 Finally, as discussed in section 14-3:3, Texas Rule 215.2(c) provides for sanctions (specifically, contempt of court) for the failure of a nonparty to comply with an order under Texas Rules 196.7 or 205.3.
A number of Texas courts have held that the sanctions provided by Texas Rule 215.2(b) cannot be imposed against a nonparty.97 In so holding, the courts have relied on the fact that Texas "Rule 215.2(b) only authorizes the trial court to impose sanctions for discovery abuses committed by 'a party or an officer, director, or managing...
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